COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00611-CR
DAMIEN GUERRERO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1263552D
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MEMORANDUM OPINION1
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A jury convicted Appellant Damien Guerrero of the offenses of aggravated
sexual assault of a child and indecency with a child by contact. The trial court
assessed concurrent seven-year terms of imprisonment as punishment. In three
issues, Appellant asserts the evidence is insufficient, the trial court erred in
admitting text messages between him and the Complainant, and the jury
1
See Tex. R. App. P. 47.4.
selection was unauthorized because there was no order referring the magistrate
to preside over the voir dire. We affirm.
The Indictment
In count one of the indictment, the State alleged that Appellant on or about
October 11, 2011, in Tarrant County, Texas, intentionally or knowingly caused
the female sexual organ of Complainant, a child younger than fourteen years of
age, to contact the penis of Appellant. Tex. Penal Code Ann.
§ 22.021(a)(1)(B)(iii), (2)(B) (West Supp. 2014). The State alleged the offense of
aggravated sexual assault of a child, which is a first degree felony. Id.
§ 22.021(e). First degree felonies are punishable by imprisonment for life or for
any term of not more than ninety-nine years or less than five years and a fine not
to exceed $10,000. Id. § 12.32 (West 2011).
The State waived count two.
In count three, the State alleged that Appellant on or about October 11,
2011, in Tarrant County, Texas, intentionally, with the intent to arouse or gratify
his sexual desire, engaged in sexual contact by touching the breast of
Complainant, a child younger than seventeen years. Id. § 21.11(a)(1) (West
2011). The State alleged the offense of indecency with a child by contact, which
is a second degree felony. Id. § 22.11(d). Second degree felonies are
punishable by imprisonment for any term of not more than twenty years or less
than two years and a fine not to exceed $10,000. Id. § 12.33 (West 2011).
2
Evidence
On the morning of October 11, 2011, Appellant and Complainant, who was
thirteen, exchanged text messages about Complainant skipping school to
perform fellatio on Appellant. Toting her Dora the Explorer backpack,
Complainant left her middle school campus during lunch, got into Appellant’s
truck, and went to Appellant’s apartment, where she and Appellant had sexual
intercourse. The next day, when the school’s police resource officer and
Complainant’s mother confronted Complainant about skipping school the
previous day, Complainant said she had left school to have sex with a male
whose name she did not know.
A school resource officer took Complainant to Cook Children’s Hospital for
a sexual assault examination. When the sexual assault nurse took
Complainant’s history, Complainant identified Appellant as the person with whom
she had sex and, further, indicated the sex was consensual. Complainant
reported penis-to-vagina contact as well as penetration. Complainant also
admitted being fondled, which meant being touched with the hand on the breast
and genitalia under the clothes. DNA testing later confirmed Appellant had
engaged in vaginal intercourse with Complainant.
Complainant testified she was born in December 1997 and was thirteen on
October 11, 2011. About a month before the offense, she saw Appellant at a tire
store, thought he was attractive, approached him, and asked him for his number
under the pretext that it was her sister who wanted to meet him. Complainant
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said she lied to Appellant about her age and told him she was fifteen.
Complainant said she did not know how old Appellant was. She did not see
Appellant again until October 11, 2011, but had been communicating with him by
texting.
Regarding the offense, Complainant testified at trial that Appellant touched
her breasts with his hands. She also said that Appellant used his hands and
penis to touch her vagina and that she and Appellant eventually had penetrative
sexual intercourse. Complainant said initially she wanted to, then she did not
want to, but when she told Appellant to stop, he did not.
Appellant was nineteen at the time of the offense.
Sufficiency of the Evidence
In his first issue, Appellant asserts the evidence is insufficient because the
testimony concerning the DNA evidence did not conclusively link Appellant to the
vaginal swab. Appellant complains that the vaginal swabs were never identified.
We disagree.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768
(Tex. Crim. App. 2013). The issue on appeal is not whether we as a court
believe the State’s evidence or believe the defense’s evidence “outweighs” the
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State’s evidence. Holloway v. State, 695 S.W.2d 112, 115 (Tex. App.—Fort
Worth 1985), aff’d, 751 S.W.2d 866 (Tex. Crim. App. 1988). If there is evidence
that establishes guilt beyond a reasonable doubt, and if the trier of fact believes
that evidence, we are not in a position to reverse the judgment on sufficiency of
the evidence grounds. Id.
The sexual assault nurse said she took five swabs off of Complainant’s
body for DNA. The five swabs were admitted as State’s Exhibits 24B, 24C, 24D,
24E, and 24F. The forensic DNA analyst said she recognized her initials on the
buccal swabs and the vaginal swabs. Those were identified as State’s Exhibits
24B and 24C. The buccal swab was specifically identified as State’s Exhibit 24B.
By the process of elimination, the vaginal swabs were State’s Exhibit 24C. The
forensic DNA analyst also said she discovered the presence of sperm on the
vaginal swab, extracted the DNA from the sperm cells, compared the DNA to a
known sample of Appellant’s DNA, and concluded Appellant could not be
excluded as a contributor. She said the odds of someone other than Appellant
being the contributor were “one out of every approximately 5.7 quintillion
individuals of Caucasian, African-American[,] and Southwestern Hispanic
descent.”
Appellant also complains that the forensic DNA analyst testified only
generically regarding DNA testing and theory. The forensic DNA analyst said
that the science behind DNA was generally accepted within the scientific
community and that DNA was used for identification on a daily basis. Regarding
5
reliability, she said her laboratory was certified by the ISO, which she described
as an entity having standards that met and exceeded the national standards.
She also explained that each time she ran a DNA test, her lab required standards
and safeguards that insured the machines used in testing were working correctly.
Appellant cross-examined the forensic DNA analyst at trial. Appellant did
not challenge the validity of the DNA testing and theory. Instead, Appellant got
the forensic DNA analyst to concede that it was possible, although unlikely, that
the minor contributor to the DNA sample was someone other than Complainant.
The analyst said it was possible but unlikely because the minor contributor’s data
matched Complainant’s “so perfectly.”
Standing alone, Complainant’s testimony provided legally sufficient
evidence to support the convictions. Torres v. State, 424 S.W.3d 245, 253 (Tex.
App.—Houston [14th Dist.] 2014, pet. ref’d); Connell v. State, 233 S.W.3d 460,
466 (Tex. App.—Fort Worth 2007, no pet.). It is true Complainant admitted lying
about many other things. However, regarding the offenses themselves, the text
messages and DNA evidence lent considerable credibility to her testimony.
A child under fourteen cannot legally consent to sex. May v. State, 919
S.W.2d 422, 424 (Tex. Crim. App. 1996). Neither offense requires proof that the
complainant did not consent. Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii)
(aggravated sexual assault); Id. § 21.11(a)(1) (indecency with a child). Even if a
child complainant consents in fact, that consent is not given any legal effect and
provides no defense. May, 919 S.W.2d at 424.
6
Viewing the evidence in the light most favorable to the verdict, we hold that
any rational trier of fact could have found the essential elements of the offenses
beyond a reasonable doubt. See Winfrey, 393 S.W.3d at 768. We overrule
Appellant’s first issue.
The Admission of Testimony Regarding Complainant’s Cell Phone Use
In his second issue, Appellant complains about the testimony of Reginald
Sparks, a forensic computer examiner. Detective David Bell asked Sparks to
extract data from Complainant’s cell phone on October 13, 2011. Sparks thought
Detective Bell asked for all the text messages between Appellant and
Complainant. Sparks did not recall Detective Bell’s specific request, but Sparks
said if he had been asked for messages before October 11, he would have
provided them. Sparks speculated one explanation for the exhibit not including
texts before October 11 was that he requested and obtained permission to
restrict the scope of the search based upon the volume of text messages and
upon the fact that, on Complainant’s particular model, he had to manually
transcribe the texts, which was tedious and time consuming. Sparks said
another possible explanation was that Complainant’s model stored only a certain
number of messages. Appellant objected on the basis of optional completeness;
he argued that providing just the text messages from October 11 would provide
an incomplete and misleading picture to the jury. Complainant’s testimony
showed there were text messages before October 11, 2011.
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The State responds that Appellant does not complain on appeal about the
admission of State’s Exhibit 28, which provides the text messages between
Appellant and Complainant on October 11, 2011. The State contends
Appellant’s objection at trial was to State’s Exhibit 28 and was not to Sparks’s
testimony. The State concludes that because Appellant did not object to
Sparks’s testimony, Appellant’s complaint is not preserved. See Tex. R. App. P.
33.1(a)(1); Sanchez v. State, 418 S.W.3d 302, 307–08 (Tex. App.—Fort Worth
2013, pet. ref’d).
The State is correct that at trial Appellant objected to State’s Exhibit 28 and
not to Sparks’s testimony whereas, on appeal, Appellant complains about
Sparks’s testimony and not about State’s Exhibit 28. Appellant argues: “Sparks
testified to and authenticated his verbatim transcript of some seventy-four text
messages between the two cell phones, seventy of which occurred within a four
hour period on October 11, 2011, between 8:26 a.m. and 12:30 p.m.” However,
we are to construe briefs liberally. See Tex. R. App. P. 38.1(f), 38.9. Appellant’s
argument on appeal appears to be that had the trial court not admitted State’s
Exhibit 28, Sparks would have had nothing about which to testify. Construing
Appellant’s brief liberally, his complaint is about the admission of State’s Exhibit
28 based upon the rule of optional completeness.
The rule of optional completeness provides:
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When part of an act, declaration, conversation, writing or recorded
statement is given in evidence by one party, the whole on the same
subject may be inquired into by the other, and any other act,
declaration, writing or recorded statement which is necessary to
make it fully understood or to explain the same may also be given in
evidence, as when a letter is read, all letters on the same subject
between the same parties may be given. “Writing or recorded
statement” includes depositions.
Tex. R. Evid. 107.
Optional completeness provides a mechanism whereby the objecting party
may “complete” evidence that has been offered and admitted into evidence by
the adverse party for the purpose of correcting any potentially misleading
impression. See Mendiola v. State, 61 S.W.3d 541, 545 (Tex. App.—San
Antonio 2001, no pet.). Rule 107 is not a rule of exclusion but is, instead, a rule
of admissibility. Lomax v. State, 16 S.W.3d 448, 450 (Tex. App.—Waco 2000,
no pet.). Additionally, the rule of optional completeness requires the omitted
portions be “on the same subject” and “necessary” to make the earlier admitted
evidence fully understandable. Sauceda v. State, 129 S.W.3d 116, 123 (Tex.
Crim. App. 2004); Mendiola, 61 S.W.3d at 545. Even assuming there were
earlier texts between Appellant and Complainant on the same subject, Appellant
has not shown they were necessary to make the texts of October 11, 2011, fully
understandable.
Citing Brady v. Maryland, Appellant also argues the State was required to
provide evidence favorable to the accused. 373 U.S. 83, 83 S. Ct. 1194 (1963).
9
Appellant did not object at trial on the basis of a Brady violation. Appellant has
not preserved that argument. Tex. R. App. P. 33.1(a)(1).
We overrule Appellant’s second issue.
The Absence of an Order of Referral Permitting the Magistrate to Conduct
Voir Dire
In his third issue, Appellant complains that a magistrate presided over voir
dire, but the record does not contain an order of referral by the elected judge.
Appellant contends that the judge had to sign an order of referral specifying the
magistrate’s duties. Appellant contends that without an order of referral, the
magistrate had no authority to act. Ex parte DeLeon, No. 05-11-00594-CR, 2011
WL 3690302, at *2 (Tex. App.—Dallas Aug. 24, 2011, no pet.) (not designated
for publication) (relying on Ex parte Pardun, 727 S.W.2d 131, 132–33 (Tex.
App.—Dallas 1987, no pet.) (per curiam)2).
The State responds that Appellant did not object to the magistrate and that
this court has previously ruled that in order to challenge a trial court’s referral of
voir dire to a magistrate, the appellant must have preserved error in the trial
court. See Nash v. State, 123 S.W.3d 534, 536–37 (Tex. App.—Fort Worth
2003, pet. ref’d) (citing Lemasurier v. State, 91 S.W.3d 897, 900 (Tex. App.—Fort
Worth 2002, pet. ref’d); McKinney v. State, 880 S.W.2d 868, 870 (Tex. App.—
Fort Worth 1994, pet. ref’d)); Hoag v. State, 959 S.W.2d 311, 313 (Tex. App.—
2
In Pardun, the magistrate exceeded the scope of the referral order.
Pardun, 727 S.W.2d at 132–33. The opinion never addresses a failure to
preserve error or the implications of a failure to preserve error. Id.
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Fort Worth 1997, no pet.) (citing Davis v. State, 956 S.W.2d 555, 557, 560 (Tex.
Crim. App. 1997)). The State concedes DeLeon holds in Appellant’s favor.
However, the State correctly asserts DeLeon is not binding authority upon this
court. See Shook v. State, 156 Tex. Crim. 515, 517, 244 S.W.2d 220, 221
(1951) (op. on reh’g) (stating that courts are not bound by the decisions of other
courts of equal jurisdiction). The State also points out that DeLeon is not a
published case. Unpublished criminal opinions have no precedential value. Tex.
R. App. P. 47.7(a). The State concludes, therefore, that this court should follow
its own earlier authority and overrule Appellant’s third ground for failure to
preserve error. Tex. R. App. P. 33.1(a)(1); Nash, 123 S.W.3d at 537. Because
DeLeon has no precedential value as an unpublished opinion, and because our
own Nash opinion is controlling on this issue, we agree with the State.
We overrule Appellant’s third issue.
Conclusion
Having overruled Appellant’s three issues, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 26, 2015
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Damien Guerrero v. State
Combined Opinion